Fair Work Act 2009 (Cth)

DECISION OF: His Honour Deputy President Judge Rossi

Application for money claim and pecuniary penalty - respondent failing to file an Answer to the claim and failing to attend Tribunal hearings including at trial - applicant presenting as a credible witness and relying upon admissions made on behalf of the respondent - monetary claim proven - adjournment of pecuniary penalty claim

Association of Professional Engineers, Scientists and Managers Australia v Bulga Underground Operations Pty Ltd [2019] FCA 1960

1. On 4 January 2025 the applicant Lucinda Ward (Ms Ward) filed an Application-Money Claim and Pecuniary Penalty seeking outstanding salary payments, annual leave and long service leave entitlements she had accrued, and superannuation contribution entitlements. The named respondent is INTRO Architecture Pty Ltd (INTRO). No answer has been filed by INTRO to the application. Ms Ward was employed by INTRO as a Planning Advisor during the period from 15 June 2017 and 25 August 2024. The letter of offer of employment, accepted by Ms Ward, referred to part time employment based upon a full-time equivalent salary, that she would be entitled to leave in accordance with the Fair Work Act 2009 (Cth) (the FW Act) and that statutory superannuation contributions, noted at the time to be 9.5% of salary, would also be made. No award or enterprise agreement was referred to in the letter or Ms Ward's application.
2. The parties were directed to participate in a compulsory conciliation conference process. INTRO made application to adjourn the date of conference initially set by the Tribunal on the basis that it was unable to attend the scheduled date and time. The application was granted by the Commissioner, and the matter was relisted for a compulsory conciliation conference on 16 May 2025. Again, there was no attendance for INTRO. The reason given was that the appropriate officer was in Sydney. The matter was referred for hearing and determination.
3. By notice of hearing dated 26 May 2025, the parties were advised that the matter would proceed to trial commencing at 10:00am on 22 July 2025 before his Honour Judge Calligeros. By both email transmission and a Notice of Hearing dated 30 June 2025, the parties were advised that that the matter would remain listed for trial on 22 July 2025 but would proceed before me commencing at 10:30am. That was confirmed with INTRO by order of the Tribunal dated 8 July 2025, following a non-attendance on its behalf at a directions hearing that day. The orders made reference to the trial remaining listed and that the Court may proceed to hear the matter if Ms Ward attended and there was no attendance on behalf of INTRO.
4. On 22 July 2025, Ms Ward attended in person and there was no attendance for INTRO. No explanation was given for the non-attendance. I was satisfied that INTRO had been afforded an opportunity to be heard and that it was appropriate to proceed with the trial in its absence.
5. Ms Ward presented her evidence which was both in a documentary and oral form. I had the opportunity to observe her as she presented her case, including her evidence, and as she addressed matters raised by the Court. She presented in a straightforward manner, and her evidence was consistent with the content of documents received. I am satisfied that her unchallenged evidence is a sound basis for findings of fact.
6. Ms Ward relied upon admissions I have been satisfied were made by officers of INTRO on its behalf. The admissions were by its managing director Damian Ellis, and its office manager, who also attended to matters of payroll, Ms Kirsty Birkett. Significantly, the majority of the admissions were in writing.
7. Ms Ward claimed outstanding wages for the months of July and August 2024, accrued annual leave entitlements and accrued long service leave entitlements. Ms Ward also claimed that her nominated account for superannuation contributions with UniSuper had not received any contributions for the period from July 2023 to August 2024.
8. By written communication on 9 January 2025 Mr Ellis told Ms Ward that he was "pulling things slowly together". Ms Ward replied the next day with a statement of a need to formalise the actual amount owed. On 21 February 2025 Ms Birkett wrote to Ms Ward setting out her calculations of the amounts owing to Ms Ward. I summarise the amounts stipulated by Ms Birkett as follows:
   1. Wages owed for the month of July 2024 - $2183.51
   2. Wages owed for the month of August 2024 - $2111.53
   3. Accrued annual leave entitlement for 93.33 hours of accrued annual leave - $4307.54
   4. Outstanding long service leave entitlement - $3412.50
   5. Total - $12,015.08
9. There was an error made by Ms Birkett in her totalling of the relevant amounts. She referred to a total of $9112.34. I am satisfied that was an arithmetic error in the adding up of the amounts identified by her as being owed by INTRO to Ms Ward. Ms Birkett stated that the superannuation contributions outstanding for the period July 2023 to August 2024 totalled $3534.76 plus an additional amount of $1684.85 for contributions that should have been made in accordance with a salary sacrifice arrangement. That made a total of $5219.61 of outstanding superannuation contributions which should have been made to UniSuper.
10. I accept the evidence of Ms Ward that there was a subsequent discussion or exchange of SMS messages between herself and Mr Ellis with a view to agreeing a payment plan. Ms Ward confirmed her understanding of an agreement reached in an email to Ms Birkett on 21 February 2025. Ms Ward referred to instalments of $1000 to be paid on 21 February, 7 March and 21 March with the balance to be paid of salary and leave entitlements, and for the separate superannuation contribution amount to be provided by the end of March 2025. I find that email sets out what was agreed between Ms Ward and Mr Ellis. However, following a payment of $3000 on 11 January 2025, INTRO made one further lump sum payment to Ms Ward of $2500 on 24 February 2025. No further payment has been made by INTRO to Ms Ward and INTRO has not provided any payment by way of superannuation contributions to UniSuper for the period July 2023 to August 2024. Ms Ward has accepted Ms Birkett's calculations of the arrears owing to her. No other amounts have been referred to by Mr Ellis in the documentary evidence produced to the Court. I am satisfied that Ms Birkett's calculations, other than the arithmetic error in totalling the primary amounts calculated, are an appropriate basis to determine the amounts owing.
11. The South Australian Employment Court is an eligible State court for an application for a pecuniary penalty order pursuant to s 546 of the FW Act. Subsection 546(1) provides that such a court may, on application, order a person to pay a pecuniary penalty that the Court considers is appropriate if the Court is satisfied that the person has contravened a civil remedy provision. Subsection 323(1) provides that an employer must pay an employee amounts payable to the employee in relation to the performance of work in full and at least monthly. It is designated a civil remedy provision. I find that the continued failure by INTRO to pay Ms Ward her wages for the months of July and August 2024 is a contravention of s 323(1) of the FW Act. The continued failure to pay, in full, the long service leave entitlement of $4307.54 since the end of employment on 25 August 2024, is also a contravention of s 323(1) of the FW Act.[1]
12. Section 44 of the FW Act provides that an employer must not contravene a provision of the National Employment Standards. It is designated a civil remedy provision. Section 90 of the FW Act sets out, as a National Employment Standard, the timing of payment for annual leave. Subsection 90(2) provides that if, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave. INTRO has contravened s 90(2) and s 323(1) in continuing to have failed to make payment in full of the accrued annual leave amount of $4307.54 since the contract of employment came to an end on 25 August 2024.
13. Section 116B was inserted in the FW Act and became operative on 1 January 2024 as a National Employment Standard. It provides that an employer must make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay a superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee. INTRO has contravened s 116B in not providing superannuation contributions for the period from 1 January 2024 to 25 August 2024, to Ms Ward's nominated account with UniSuper.
14. The Application-Money Claim & Pecuniary Penalty form, as amended at trial, seeks orders for the payment of pecuniary penalty. Ms Ward has not determined whether that claim would be limited to INTRO or whether there would be an application to claim against other respondents by reference to s 550 of the FW Act.[2] In the circumstances, it is appropriate that the claim for pecuniary penalty be adjourned initially to a directions hearing. The current parties will have the benefit of these reasons for determining if a further application should be made at that time. It is also appropriate, where Ms Ward has confirmed her application for pecuniary penalty, that declarations be made following the findings expressed earlier in these reasons.

1. The respondent INTRO Architecture Pty Ltd contravened s 323(1) of the Fair Work Act 2009 (Cth) by failing to pay to its employee, Lucinda Ward, the full amount payable to her in relation to the performance of work, namely, her wages for the months of July and August 2024.
2. The respondent INTRO Architecture Pty Ltd contravened s 323(1) of the Fair Work Act 2009 (Cth) by failing to pay its employee, Lucinda Ward, the full amount payable to her in relation to the performance of work, namely the full amount payable to her in respect of untaken long service leave upon the cessation of her employment on 25 August 2024.
3. The respondent INTRO Architecture Pty Ltd contravened s 90(2) and s 323(1) of the Fair Work Act 2009 (Cth), namely by failing to pay to its employee Lucinda Ward the full amount payable to her in relation to the performance of work, namely for untaken paid annual leave which became payable in full upon the cessation of her employment on 25 August 2024.
4. The respondent INTRO Architecture Pty Ltd contravened s 116B of the Fair Work Act 2009 (Cth) by failing to make contributions to the superannuation fund UniSuper for the benefit of its employee, Lucinda Ward, from 1 January 2024 and until her employment ceased on 25 August 2024.

1. Within 14 days the respondent INTRO Architecture Pty Ltd is to make payment to the applicant Lucinda Ward a sum of $6515.08.
2. Within 14 days, the respondent INTRO Architecture Pty Ltd is to make a payment to the applicant Lucinda Ward's nominated account with UniSuper a sum of $5219.61 by way of superannuation contributions for the period of July 2023 until August 2024.
3. Within 14 days, the respondent INTRO Architecture is to make payment to the applicant Lucinda Ward a sum of $953.55 by way of interest.
4. The applicant's claim for pecuniary penalty is adjourned to a directions hearing on Thursday, 14 August 2025 at 10am.

[1] See reasoning of Wigney J in Association of Professional Engineers, Scientists and Managers Australia v Bulga Underground Operations Pty Ltd [2019] FCA 1960.

[2] Section 550 of the FW Act provides for accessorial liability if a person is involved in a contravention of a civil remedy provision.